Bar Counsel: Payton-Goldfrank: The Report in a Nutshell

From Washington Lawyer, February 2007

By Gene Shipp

A few months ago we wrote a column telling those interested in the disciplinary process to watch for the final report of the D.C. Bar Disciplinary System Study Committee, otherwise known as the Payton-Goldfrank Committee after its chair and vice chair, John Payton and Judge Joan Goldfrank. On October 10 the report was approved by the D.C. Bar Board of Governors and submitted to the District of Columbia Court of Appeals for consideration.[1]

Now, who should be interested and why? Not just those who are being prosecuted or those who represent respondents being investigated and/or prosecuted, but every member of the D.C. Bar should be interested, because more than one-third of your membership dues supports our system of discipline.[2] Any improvement in the “efficiency, effectiveness, and fairness”[3] of the disciplinary system directly affects how your dues are spent.

This column will give you an outline of the issues and the proposals presented by the Payton-Goldfrank report.

Consent to Discipline. If the matter is not one of first impression, the Office of Bar Counsel and the respondent would be permitted to enter into an agreement as to the underlying facts, conclusions of law, and sanction. An attorney may consent with the approval of a contact member, followed by a hearing before a hearing committee, and a review by the Board on Professional Responsibility.[4] Plea bargaining between Bar Counsel and the respondent will not be permitted.

Reciprocal Show Cause. An attorney disciplined in another jurisdiction would be required to show cause before the court as to why identical reciprocal discipline should not be imposed. If unopposed, reciprocal discipline would be imposed by the court without referral to the board.

Failure to Respond. An attorney under investigation for serious misconduct who fails to respond to Bar Counsel after Bar Counsel has obtained an order requiring a response could be suspended on an interim basis by the court. This interim suspension would be vacated when the respondent satisfies the order.

Default at Hearing. Bar Counsel could seek a default judgment if the respondent fails to answer a petition after receiving notice of Bar Counsel’s charges. Bar Counsel would still be required to prove up its charges. The respondent could seek to set aside the default for good cause within 90 days of the report and recommendation of the hearing committee.

Uncontested Reinstatements. Following Bar Counsel’s investigation, if the matter is uncontested, reinstatements would proceed directly to the court. This change would eliminate review by the hearing committee and the board.

Final Discipline. The board could impose final discipline in all matters except disbarments or suspensions with fitness requirements. Final discipline imposed by the board would be subject to discretionary review by the court.

Confidentiality of Disciplinary Proceedings. Bar Counsel would be permitted to cooperate with disciplinary agencies, law enforcement officials, other attorney disciplinary bodies, and related organizations with the permission of the board chair.

Immunity for Practice Monitors. While acting as a practice monitor, an attorney would receive disciplinary immunity unless the attorney engages in intentional misconduct or criminal activity.

Diversion. Previously, diversions could not be offered when an attorney’s conduct had the potential to prejudice a client’s interests. Under the proposed change, the reference to potential prejudice has been eliminated.

At the time of this writing, the court has not yet asked for comments. We expect the comment period to start soon. Please take the time to review the changes and share your comments with the court. The more thought given to these changes, the better for all. We would consider your time and review a personal favor.

Notes[1] The text of the report can be found at www.dcbar.org/about-the-bar/reports.[2] Of course, members of the public who consume attorney services are potentially interested, but this magazine does not generally reach these people.[3] This phrase is used repeatedly by the committee in its report.[4] Consent to discipline involving a finding of fitness must be reviewed by the court.

Disciplinary Actions Taken by the Board on Professional ResponsibilityOriginal Matters
In re Jeffrey E. Gonzalez-Perez. Bar No. 457816. November 14, 2006. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Gonzalez-Perez for 90 days for misrepresenting that he was a member in good standing of the District of Columbia Bar and for continuing to represent clients before the immigration courts during his administrative suspension for nonpayment of dues. In addition, Gonzalez-Perez failed to respond to Bar Counsel’s inquiries and comply with a board order compelling a response. Rules 3.3(a), 5.5(a), 8.1(b), 8.4(c), and 8.4(d).

In re David H. Safavian. Bar No. 448540. November 3, 2006. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Safavian. Safavian was convicted in the United States District Court for the District of Columbia of two felony offenses: obstruction of justice, in violation of 18 U.S.C. § 1505, and false statements, in violation of 18 U.S.C. § 1001. Because Safavian’s conviction for obstruction of justice involved a crime of moral turpitude per se, disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

In re Curtis L. Solomon. Bar No. 953596. November 6, 2006. In two matters that were consolidated, the Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Solomon for 120 days, to begin when, if ever, Solomon’s suspension from a 1991 order of the court terminates. The board further recommends that reinstatement be conditioned upon Solomon demonstrating full compliance with Bar Counsel’s outstanding requests for information and proof of fitness. Solomon is currently suspended from the practice of law, and has been for 15 years, based on a 30-day suspension with a reinstatement condition that has not been satisfied. In this consolidated matter, Solomon failed to respond to inquiries from the Office of Bar Counsel and two orders of the board. Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

Reciprocal Matters
In re Thomas W. Kinnane. Bar No. 479416. November 3, 2006. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Kinnane. The Court of Appeals of Maryland disbarred Kinnane for improperly splitting his legal fee, committing felony theft, and engaging in conduct that involved dishonesty and misrepresentation.

In re Susan M. Robbins. Bar No. 428167. October 6, 2006. In a reciprocal matter from Arizona, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and publicly censure Robbins. The Supreme Court of Arizona censured Robbins based on an agreement for discipline by consent for falsely representing to the court that the parties had entered into correspondence and that additional time was required to ascertain whether settlement could be reached. In fact, a letter was not mailed to the opposing party until nearly two weeks after Robbins made the representation to the court. Accordingly, the representation to the court, which formed the basis for relief requested in the motion for extension of time in which to serve the complaint, was not true.

In re Michael W. Ryan Jr. Bar No. 469430. November 17, 2006. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and suspend Ryan for 60 days, effective immediately but deemed to run from the date Ryan files an affidavit in compliance with D.C. Bar Rule XI, § 14(g). The Court of Appeals of Maryland suspended Ryan for 60 days by consent. Ryan acknowledged in the Maryland affidavit that if a hearing were held, sufficient evidence could be produced to sustain charges of neglect, commingling, and inadequate supervision of nonlawyer staff in a personal injury case, as well as failure to disburse settlement funds in another matter.

In re Charles M. Tatelbaum. Bar No. 232348. October 13, 2006. In a reciprocal matter from Florida, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and suspend Tatelbaum for 90 days, followed by probation for one year with the probation conditioned upon Tatelbaum’s compliance with the conditions imposed in Florida. The board further recommends that the suspension and probation should begin to run effective as of the date of his suspension in Florida, March 8, 2006, provided Tatelbaum files a satisfactory supplemental affidavit within 14 days of the date of the board’s report. Tatelbaum’s misconduct arose when he was charged with one count of filing a false and fraudulent insurance claim, for which he entered into a plea agreement. As a result of the criminal charge, the Supreme Court of Florida suspended Tatelbaum based on an agreement with Florida disciplinary counsel in which he admitted to violations of Rules 3-4.3, 3-4.4, 4-8.4(b), and 4-8.4(c) of the Florida Rules of Professional Conduct.

Disciplinary Actions Taken by the District of Columbia Court of AppealsOriginal Matter
In re Thomas Mooers. Bar No. 429538. November 16, 2006. The D.C. Court of Appeals disbarred Mooers, but stayed the disbarment in favor of three years of conditional probation because of the existence of Kersey-style mitigation. Mooers suffered from major depression and the misconduct would not have occurred but for his depression. Mooers intentionally misappropriated client funds and engaged in dishonest conduct. Rules 1.15(a) and 8.4(c).

Reciprocal Matters
In re Howard L. Greenspan, Bar No. 266668, and Leslie D. Silverman, Bar No. 448188. November 9, 2006. In this consolidated matter involving reciprocal bar discipline of two members of the D.C. Bar, the D.C. Court of Appeals dismissed the reciprocal disciplinary proceedings against Greenspan and Silverman, holding that neither the Massachusetts Board of Bar Overseers nor the Attorney Grievance Commission of Maryland is a “disciplining court” under D.C. Bar Rule XI, § 11(a) (2006). Regarding an original matter also against Silverman, the court publicly censured Silverman for her failure to respond to Bar Counsel’s lawful demands for information, in violation of Rules 8.1(b) and 8.4(d), and her failure to comply with a board order, in violation of D.C. Bar Rule XI, § 2(b)(3). One judge dissented with regard to the majority’s holding concerning the reciprocal cases and would recognize that the public reprimands that were lawfully issued and consented to in Maryland and Massachusetts trigger application of the reciprocal discipline system in the District of Columbia.

In re Steven F. Goldman. Bar No. 484050. November 9, 2006. In a reciprocal matter from New York, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and suspended Goldman for five years with fitness. The Appellate Division of the Supreme Court of New York for the First Judicial Department accepted Goldman’s resignation and struck his name from the roll of attorneys and counselors-at-law in the state of New York. Under the New York court’s rules of practice, Goldman must wait for seven years before he can petition for reinstatement. In the affidavit Goldman submitted to the Departmental Disciplinary Committee, he described the nature of the allegations against him as receiving settlement monies on behalf of four clients (totaling $76,500); withdrawing funds from these settlements without the knowledge and consent of the aforementioned clients; and using the settlement monies for his own purposes before remitting monies to the clients. In addition, Goldman allegedly failed to retain full records for his attorney trust accounts.

In re Charles M. James III. Bar No. 436913. November 22, 2006. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred James. The Court of Appeals of Maryland disbarred James for a number of violations of Maryland’s Rules of Professional Conduct, including, inter alia, intentional misappropriation.

In re Jesus R. Romo Vejar. Bar No. 416922. October 12, 2006. In a reciprocal matter from Arizona, the D.C. Court of Appeals imposed nonidentical reciprocal discipline and suspended Romo Vejar for six months. The Supreme Court of Arizona publicly censured Romo Vejar and placed him on probation for one year with terms for stipulated disciplinary violations of the Arizona Supreme Court rules and Arizona Rules of Professional Conduct related to neglect, negligent misappropriation, commingling, and trust account violations. The misconduct arose from Romo Vejar’s representation of a client in a personal injury matter and his subsequent handling of settlement proceeds, which included the negotiation of a lien payment to his client’s insurance company. During the period when Romo Vejar held the funds in his trust account, he allowed some of those trust funds to be used for other reasons, thereby not preserving these funds at all times. Because negligent misappropriation warrants a significantly different sanction in the District of Columbia, the court imposed substantially different reciprocal discipline of a six-month suspension.

In re Edward A. Slavin. Bar No. 413136. November 30, 2006. In a reciprocal matter from Tennessee, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Slavin for two years with fitness. Slavin may apply for reinstatement after one year, but for purposes of reinstatement, the time period shall begin to run from the date he files his affidavit as required by D.C. Bar Rule XI, § 14(g). The Supreme Court of Tennessee suspended Slavin for violations of the Code of Professional Responsibility as set forth in Rule 8 of the Tennessee Supreme Court, including failure to follow court orders; conduct involving dishonesty, fraud, deceit, or misrepresentation; intentionally prejudicing or damaging the client during the course of the professional relationship; failure to communicate with clients; failure to return client records; engaging in conduct prejudicial to the administration of justice; and engaging in undignified or discourteous conduct degrading to a tribunal.

Contempt Proceedings
In re Richard A. James. Bar No. 951160. November 8, 2006. Judge Rankin of the Superior Court of the District of Columbia sentenced James to eight months of incarceration for criminal contempt of court. Judge Rankin found that James had practiced law in violation of the probation order and disbarment order issued by the D.C. Court of Appeals, respectively, in 2002 and 2000.

Informal Admonition Issued by the Office of Bar Counsel
In re Albert M. Williams. Bar No. 229526. October 31, 2006. Bar Counsel issued Williams an informal admonition for incompetently undertaking to represent two minors in a personal injury matter without the permission of their parents or guardians; failing to make reasonable efforts to ensure that he had in effect measures giving reasonable assurance that a nonlawyer independent contractor’s conduct was compatible with the attorney’s professional obligations; and failing to make reasonable efforts to ensure that a nonlawyer’s conduct, over which he had direct supervisory power, was compatible with the attorney’s professional obligations. Rules 1.1(a), 1.1(b), 5.3(a), 5.3(b), and 5.3(c)(1)–(2).

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Reports and recommendations issued by the Board on Professional Responsibility, as well as informal admonitions issued by the Office of Bar Counsel, are posted on the D.C. Bar’s Web site at www.dcbar.org/discipline. Court opinions are printed in the Atlantic Reporter and, for decisions issued since mid-1998, are also available online. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/internet
/opinionlocator.jsf. Please note that in some cases Bar members may have the same name. To confirm the identity of individuals who have been subject to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or memberservices@dcbar.org.